update: aul guidance revisions summary of comments june 23, 2011 peggy shaw workgroup chair

Update: AUL Guidance RevisionsSummary of Comments

June 23, 2011

Peggy ShawWorkgroup Chair

Comments available online: www.mass.gov/dep/cleanup/laws/aulcom.pdf

Draft Guidance:www.mass.gov/dep/cleanup/laws/auldr.pdf

Contact information:Peggy Shaw(617) 556-1092Margaret.Shaw@state.ma.us

Draft AUL Guidance: Background

• Draft was released in December, 2010• Primary goal of draft was to update

Guidance to make consistent with MCP and current practice

• Comment period ended April 1, 2011• Comments sought/received on content of

draft, and identifying issues where further guidance would be helpful

Process for Addressing Comments

• Prepare and make available written Response to Comments• Potential workgroup in Fall 2011, if necessary to discuss our response to comments• Some changes may involved revisions to MCP and/or further discussion

Sections of AUL Guidance:

Section 1: IntroductionSection 2: AULs and Risk CharacterizationSection 3: AULs: Types and ElementsSection 4: Preparing an AULSection 5: AUL Recording and Processing RequirementsSection 6: Maintaining an AULAppendices

Section 2: AULs and Risk Characterization

• Substantial editing to Section 2 with intent to: – eliminate redundancies with Risk

Characterization Guidance– streamline policy

• Based on comments, we will be making several revisions

Planned Use = Current Use (Section 2.3.1)

• Issue: ‘99 Guidance states that current use includes “those uses that are actually occurring and those that are probable and consistent with surrounding areas,” but does not mention “planned uses”

• Response: Revision intended to clarify that imminent “planned uses” should be evaluated as a current use

• Action: Discuss/revise Section 2.3.1 to clarify

Reasonably Foreseeable Use (Section 2.3.2)

• Issue: Proposed changes suggest a change in DEP’s interpretation of reasonably foreseeable use

• Response: Substantial editing to Section 2 of Guidance to streamline and provide clarification, not to indicate a change in policy

• Action: Will revise Section 2.3.2 to ensure consistency with MCP

“Voluntary” AULs (Section 2.4.2)

• Issue: Add language consistent with 40.1012(3) allowing AULs to be used to provide notice when not required by MCP

• Response: Draft de-emphasizes use of “voluntary” AULs, but we were persuaded by comments to address

• Action: Revise draft; and explore options for making clear to DEP when an AUL is voluntary (e.g., form change)

AULs and Sediment (Section 2.6.3)

• Issue: Legal and administrative difficulties implementing AULs where there is sediment contamination were noted; provide more details on procedures

• Response: Addresses limited case where AUL is documenting a cap that is part of remedy; does not create any new requirement to install a sediment cap

• Action: Will make additional clarifications

Residential AULs and Wetlands (Section 2.7.1)

• Issue: Current draft notes wetlands as a possible exception to residential use

• Response: Editing oversight• Action: Will eliminate reference with next

revision

Plans (Sections 2.7.3 & 2.7.4)

• Issue: HASP – both ends of the spectrum: should be more prescriptive; and bulleted list of requirements should not be included

• Response/Action: We can only require what is allowed for via 40.0018; will clarify that bulleted is recommendation

• Issue: SMPs – unreasonable to ask for meaningful details at time of AUL

• Response/Action: Will clarify that this is meant broadly (i.e., goals of plan, not specifics)

Risk of Harm to Safety (Section 2.9)

• Issue: Example describing AUL providing for maintenance of cap where physical hazards (e.g., glass/metal) comingled with contamination could be interpreted broadly

• Response/Action: Will clarify that not intended to impose a requirement, but to provide option for addressing physical hazards as part of an AUL that is being implemented anyway

Use of Fences (Section 2.9)

• Issue: Guidance states that a fence should not be used as part of a Permanent Solution if NSR relies on maintenance of fence – comments disagree

• Response: Fences are referenced as an example of a temporary measure at 40.0923(5); alone is not an adequate barrier to eliminate exposure pathway

Other Comments

Exhibits (Section 3.5)

• Issue: More details concerning Exhibits A-1 and A-2 would be helpful

• Issue: Signatory Authority documentation should be submitted following Notice signature page, not as Exhibit D

• Action: Will provide clarifications, as appropriate

Notices (Sections 5.3 & 5.4)

• Issue: Clarify Notice to Record Interest Holders procedure when parties agree to waive 30-day waiting period

• Response/Action: Will revise to clarify that submitting written waiver to DEP is recommendation, not requirement

• Issue: Add public notice requirements for Amendments and Terminations, if different

• Response/Action: Will revise to note that public notice requirements are the same

Use of Terms

• Issue: E.g., use of “must” vs. “should” vs. “may”

• We will review document and make revisions where appropriate

Overlapping AULs

• Issue: AULs on single property with releases at different times, owners, PRPs, LSPs, constituents of concern, etc.

• Will address after further discussion

Barriers and Survey Plans

• For multiple barriers, survey or sketch plan is required to delineate each barrier, but submitting Amendment when there is a change in barriers (e.g., new building), but no change in exposure pathways is excessive

• Response: AUL could be written with construction contingencies; Post RAO submittals could address

Future Buildings• Policy eventually set forth in Vapor

Intrusion Guidance will be referenced in AUL Guidance

Gardening

• Approach to the gardening pathway is being reconsidered, and will be referenced in AUL Guidance in the future

Case Studies

• Case studies or similar “examples” will be added to document, after discussions with external workgroup

Regulatory Reform

• DEP’s Regulatory Reform Effort may impact procedures for implementing AULs

Next Steps• Complete and distribute Response to Comments• Workgroup meeting in Fall 2011, as necessary• Revise document to include changes that will bring document up to date with current MCP• Distribute as an Interim Final